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Estate of Williams v. Brennan

United States District Court, N.D. Mississippi, Oxford Division

March 4, 2019

ESTATE OF PAMELA KAY WILLIAMS, DECEASED, BY AND THROUGH ADMINISTRATOR, COOPER WILLIAMS, II AND NEXT FRIEND, JEREMY A. WILLIAMS PLAINTIFF
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL AND CHIEF EXECUTIVE OFFICER OF THE UNITED STATES POSTAL SERVICE, AND THE UNITED STATES POSTAL SERVICE DEFENDANTS

          ORDER

          MICHAEL P. MILLS U.S. DISTRICT COURT.

         This cause comes before the court on the motion of defendants Megan J. Brennan, Postmaster General and Chief Executive Officer of the United States Postal Service (USPS), and the USPS itself, to dismiss this action, pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(4), 12(b)(5), and 12(b)(6).[1] Plaintiff Estate of Pamela Kay Williams, by and through administrator Cooper Williams II, has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion should be granted in part and denied in part.

         This is a Federal Tort Claims Act (FTCA) action arising out of a particularly tragic fact pattern. For the purposes of its motion to dismiss, defendant concedes the essential facts alleged by plaintiff in his complaint, as follows:

Pamela Kay Williams was an employee mail carrier of the United States Postal Service in Pope, Mississippi. (Docket 1, ¶ 7). Ms. Williams separated from her husband, Cooper Clemons Williams, on June 12, 2016. Id. at ¶ 8. On June 24, 2016, Ms. Williams received an Emergency Protection Order against her husband, alleging he threatened to kill her. Id. at ¶ 10. Ms. Williams presented the protective order to her superiors at USPS, and requested that she not be required to deliver mail to her estranged husband's residence. Id. at ¶ 14. USPS denied the request. Id. at ¶15. Ms. Williams filed for divorce on October 27, 2016, and told the USPS that if her husband saw her delivering mail to his house then he would kill her. Id. at ¶17. Again the USPS denied Ms. Williams' request. Id. at ¶ 18. While Ms. Williams delivered mail in Mr. Williams' neighborhood on December 23, 2016, Cooper Williams shot and killed her and then shot and killed himself. Id. at ¶ 20, 21.

[Defendants' brief at 2]. Based on these and other allegations, plaintiff filed the instant action in this court on December 18, 2017.

         In its motion, defendant raises several grounds for dismissal, some of which have been conceded by plaintiff in his response. In particular, defendant argues, and plaintiff concedes, that various constitutional claims which are asserted in the complaint are not the proper subject of a FTCA action. It seems clear that the FTCA exists (as its name suggests) for the litigation of tort claims, and any constitutional claims which plaintiff sought to assert under 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) are improper and due to be dismissed under Fed.R.Civ.P. 12(b)(6). This court likewise concludes that any attempt by plaintiff to recover directly against the United States for the torts of assault and battery is barred by the FTCA. However, it seems clear that plaintiff's real argument in this context is that the government should be held liable for negligence or gross negligence in failing to protect her from the threat of harm by a third party. See Sheridan v. United States, 487 U.S. 392, 398, 108 S.Ct. 2449, 2454, 101 L.Ed.2d 352 (1988)(observing that “it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur.”) It thus appears that plaintiff does not actually dispute defendant's argument that it may not be held liable for the torts of assault and/or battery in this case, and this court will now turn to the dismissal arguments which are actually contested.

         This court first considers defendant's motion, under Fed.R.Civ.P. Rule 12(b)(1), to dismiss this action for lack of jurisdiction, based on the discretionary functions exception in the FTCA. The FTCA imposes liability on the federal government “in the same manner and to the same extent as a private individual” for the negligent acts of federal employees acting within the scope of their employment. 28 U.S.C. § 2674; see also Aretz v. United States, 604 F.2d 417, 426 (5th Cir. 1979). This waiver of sovereign immunity is subject to several exceptions, including the discretionary functions exception which prohibits holding the government liable for:

any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. §2680(a). Based on this retention of sovereign immunity in § 2680(a), courts lack subject matter jurisdiction over lawsuits based on discretionary functions.

         A two-step inquiry determines if the discretionary functions exception applies. First, the court must determine whether the act or failure to act in question involves “judgment or choice.” United States v. Gaubert, 499 U.S. 315 (1991). If a federal law, regulation, or policy provides mandatory requirements as to how any employee must act in a given situation, then the exception does not apply. Id. at 322. However, if the relevant statutory provisions leave to the judgment of the agency certain decisions regarding how to proceed, such that the agency is not bound to act in a particular way, then the exception is nevertheless applicable. Id. at 329, citing Berkovitz v. United States, 486 U.S. 531, 536 (1988).

         If the court determines that the act involves judgment or choice, then it must determine whether the judgment or choice “is the type that the discretionary function is designed to shield.” Berkovitz, 486 U.S. at 536. This inquiry determines whether decisions are grounded in social, economic, and public policy. Id. A government regulation giving government employees discretion creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations. Gaubert, 400 U.S. at 324. Gaubert rejected the distinction between actions at the policy or planning level and those at the operation level. Autery v. United States, 992 F.2d 1523, 1527 (11th Cir. 1993). Rather, “[i]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Id. at 813 (citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines).

         While the law in this context is rather well-established, there remain significant difficulties inherent in distinguishing discretionary from non-discretionary functions under the FTCA. One commentator has noted that “[t]he difficulty in applying this exception is in determining what constitutes a discretionary function, [and] . . . the line is often difficult to draw.” Erwin Chemerinsky; Federal Jurisdiction § 9.2.3 at 668-69 (Sixth Ed.). This court certainly agrees with Dean Chemerinsky regarding the difficulties in applying the discretionary functions exception, and this difficulty is exacerbated by the fact that there appears to be little, if any, authority involving a factual scenario directly analogous to this one. Nevertheless, this is an issue of law which must be resolved by this court, and it will accordingly endeavor to do so.

         In this case, this court does not doubt that the decision of whether to re-assign another employee to deliver mail at Cooper's house involved “judgement or choice, ” but it concludes that the requested re-assignment was so limited in scope that it cannot be fairly characterized as a decision based on “social, economic, and public policy.” As quoted previously, defendant concedes, for the purposes of this motion, plaintiff's description of the following facts:

On June 24, 2016, Ms. Williams received an Emergency Protection Order against her husband, alleging he threatened to kill her. Ms. Williams presented the protective order to her superiors at USPS, and requested that she not be required to deliver mail to her estranged husband's residence. USPS denied the request. Ms. Williams filed for divorce on October 27, 2016, and told the USPS that if her husband saw her delivering mail to his house then he would kill her. Again the USPS denied Ms. Williams' request. While Ms. Williams delivered mail in Mr. Williams' neighborhood on December 23, 2016, Cooper Williams shot and killed her and then shot and killed himself.

[Id.].

         It thus seems clear that there was one house in the town of Pope which Pamela requested that she be allowed to avoid on her mail delivery route: that of her ex-husband. Moreover, the threat cited by plaintiff as justifying re-assignment was that she would be murdered, and this perceived threat was bolstered by the existence of a protective order, which she showed to her employer. Indeed, defendant concedes that Pamela directly informed it that “if her husband saw her delivering mail to his house then he would kill her.” Under these circumstances, it is difficult for this court to even articulate a public policy argument in favor of denying plaintiff's request, and at no point in defendant's brief does it even attempt to do so.

         In its brief, defendant relies instead upon generic descriptions of the nature of postal delivery services, and it suggests that any decisions made in relation to that service, no matter how small, and no matter how lacking in any apparent justification, necessarily involve matters of public policy. Specifically, defendant argues that:

In this case, the decision to allocate personnel on particular delivery routes is the type of judgment that the discretionary function was designed to shield. The Postal Service is charged with the responsibility of operating “as a basic and fundamental service provided to the people by the Government of the United States . . . [with] its basic function the obligation to bind the Nation together through the personal, educational, literary, and business correspondence of the people.” 39 U.S.C. § 101(a). To achieve this goal, the Postal Service “shall provide prompt, reliable, and efficient services to partrons in all areas and shall render postal services to all communities.” Id.
Decisions concerning the configuration of mail delivery routes are part and parcel of what Congress described as “. . . the responsibility of the Postal Service to maintain an efficient system of collection, sorting, and delivery of the mail nationwide.” 39 U.S.C. § 403(b)(1). Each decision made with regard to the level of delivery and service provided to a particular set of postal customers affects the economic efficiency of the Postal Service. Each type of residential postal delivery service has consequences for the Postal Service's economic efficiency. The myriad of administrative decisions of this sort made daily by Postal Service officials are exactly the type of decisions the discretionary function was designed ...

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